Age Bias Not Enough to Prevail Under ADEA

The Age Discrimination in Employment Act (“ADEA”) prohibits an employer from discriminating against an employee on the basis of age. To prevail on an ADEA claim, it is not enough to show that a supervisor was biased against older employees. A successful plaintiff needs to show that she suffered an unfavorable employment action that she would not have suffered but for age discrimination. All illustrated by the recent case of Lavina D. Jernagin v. John M. McHugh, even if a supervisor refers to an employee as an “old-timer” and a “dinosaur,” if age was not the “but for” cause of an unfavorable employment action, the plaintiff will be unable to recover.

Lavina Jernagin began civilian employment with the United States Army in 1997, working as a Logistics Management Specialist with the Army’s Directorate of Logistics (DOL). In 2003 and 2005, Ms. Jernagin received annual performance ratings of “outstanding” or “excellent.” In 2007, Sergeant Travania Fair and Pamela Kent became Ms. Jernagin’s first and second line supervisors. Sergeant Fair considered Ms. Jernagin’s performance below average. In July 2007, as part of a branch reorganization, Lawrence Lawson and Mary Costa became Ms. Jernagin’s first and second line supervisors. At trial, witnesses testified that Ms. Costa had made several derogatory age-related statements toward Ms. Jernagin and her coworkers.

After close of the appraisal period, each first line supervisor was required to submit an annual performance appraisal for each employee including a written assessment and a recommended rating. Once the first line supervisor entered the appraisal, the dinosaur.jpgsecond line supervisor reviewed the appraisal for compliance with regulations but could not change the rating or edit the assessment. If the appraisal complied with regulations, the second line supervisor signed off on its submission to the Pay Pool, a panel of higher level supervisors who would decide whether to approve the rating as final. The Pay Pool Manager entered the final rating. Ms. Costa was Ms. Jernagin’s Pay Pool Manager.

Regulations dictated that Ms. Jernagin had to be rated on objectives designated by her prior supervisor, Sergeant Fair, because she had not worked under Mr. Lawson for at least ninety days. In 2007, while working under Mr. Lawson and Ms. Costa, Ms. Jernagin received an annual performance rating of “fair” or “2,” the second lowest rating possible. Ms. Jernagin contended that Ms. Costa discriminated against her due to her age and ordered Mr. Lawson to give her a “2” rating.

The court found expressly that Ms. Jernagin had established by a preponderance of the evidence that Ms. Costa was biased towards older workers. Nevertheless, the court found that Ms. Jernagin failed to establish that this age bias was the “but for” cause of her negative rating. Sergeant Fair considered Ms. Jernagin’s performance sub-par, and Ms. Jernagin was rated on objectives that Sergeant Fair had designated. Sergeant Fair and Mr. Lawson supplied credible testimony that Sergeant Fair and Sergeant Fair alone made the decision to recommend the “2” rating.

Evidence also showed that Ms. Costa’s role in the rating process was largely administrative. Ms. Costa served as the Reviewing Official which involved ensuring that the process of preparing Ms. Jernagin’s appraisal conformed to regulations. Ms. Costa could not change the rating or edit the assessment. Although as Pay Pool Manager, Ms. Costa entered the final rating, the determination of the rating was made a by consensus of the Pay Pool panel.

In short, while Ms. Jernagin had successfully proven that she was the target of age-related discrimination, she lost the case because she was unable to prove that age bias was the “but for” cause of her poor performance review.

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